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HomeMy WebLinkAboutAD1998-0321 - Other - Kent Downtown Public Market Development Authority - Development & Use Agreement - 08/12/1998 ... ..... W.. Development and Use Agreement Between The City of Kent and Kent Downtown Public Market Development Authority THIS AGREEMENT ("Agreement") dated September , 1998, is made by and between the City of Kent, a Washington municipal corporation(the"City"), and the Kent Downtown Public Market Development Authority, a Washington public authority (the "PDA"). RECITALS A. The Kent Downtown Market(the"Market") has provided fresh produce and local crafts to the citizens of Kent for nearly 23 years. For the past five years, the Market has been operated by the Kent Downtown Partnership("KDP"). B. The Market is currently open only on weekends. Its operations are open air and therefore the Market's performance is frequently weather dependent. C. The City believes that the Market plays an essential role in making the downtown core a vibrant, vital area, and that establishment of an indoor-outdoor Market would further enhance the downtown core. D. The City has acquired the landmark Lumberman Barn (the `Barn') located on Railroad Avenue and believes that it will make an ideal location for a expanded new indoor- outdoor Market with increased hours of operation. E. In March, 1998, the City created the PDA to provide for, oversee, and facilitate the acquisition, renovation, and development of the new Barn and Market, with the understanding that the Market would be continued to be operated and managed by the KDP subject to a lease executed by the PDA and KDP. F. The City and the PDA now wish to document their mutual obligations and commitments for the renovation and development of the new Market. ARTICLE 1 PROPERTY AND FUNDS TRANSFER 1.1 Property Transfer. The City shall transfer title to the property (the"Property") located at 212 Railroad Avenue North to the PDA no later than October 1, 1998. Such transfer shall include all buildings and appurtenances contained on the Property, including but not limited to the Barn, and shall be made via statutory warranty deed. 1.2 Funds Transfer. The City shall transfer the sum of One Hundred Ninety Two Thousand Dollars($192,000.00)to the PDA no later than October 1, 1998. The PDA shall use these funds exclusively for its reasonable and necessary operating expenses and for the purpose of renovation and development of the Barn. ARTICLE 2 BANK LOAN 2.1 PDA Obligations. The PDA shall negotiate with a lender(the "Bank") for a tax exempt Loan(the "Loan") acceptable to the City to fund renovation and development of the Barn and Market. 2.2 Loan Repayment. Repayment of the Loan shall be secured by the rent proceeds paid to the PDA by the KDP under a lease (the"Lease")to be negotiated between the PDA and KDP. The PDA shall have the authority to negotiate with the Bank to establish a debt service reserve to ensure that the PDA will always have the ability to pay the sums necessary to service the Loan. 2.3 City Guarantee. The City shall guarantee the Loan between the Bank and the PDA. In the event of default by the PDA on its Loan repayment schedule, the City shall assume the PDA's payments, and the PDA shall immediately transfer title of the Property and ownership of all Barn improvements back to the City. ARTICLE 3 RENOVATION AND DEVELOPMENT 3.1 Construction Contract. The PDA shall negotiate and execute a construction contract for the renovation and development of the Barn and Market consistent with the drawings and specifications prepared by Broderick Associates. The construction contract shall be let through a public bidding process consistent with applicable state law. The PDA shall ensure that the design drawings and specifications provide for the creation of an attractive indoor-outdoor venue ideally suited for a farmer's market. 3.2 Improvements. The PDA shall oversee construction of the Barn improvements(the "Improvements") and shall ensure that the Improvements comply with all applicable codes and with all necessary requirements to receive a certificate of occupancy from the City. ARTICLE 4 LEASE 4.1 Lease Subject to City Approval. The PDA shall negotiate a lease with KDP in form and substance acceptable to the City providing for the operation and maintenance of the Market by the KDP. The Lease executed by and between PDA and KDP shall be consistent with prudent commercial practices, and shall contain provisions setting forth appropriate standards for the maintenance and operation of the Market as a first class facility. The Lease shall establish minimum standards for the following areas: safety, public access, routine maintenance and cleanliness, records keeping, and major maintenance. 4.2 Rent Reserve. The Lease shall contain a provision requiring KDP to establish and maintain a rent reserve to ensure that KDP will always have the ability to pay rent in a timely fashion. ARTICLE 5 MISCELLANEOUS 5.1 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Washington State. The parties agree that the venue of any suit arising under this Agreement shall be King County Superior Court, and each party hereby consents to jurisdiction therein. 5.2 Captions. The captions and headings throughout this Agreement are for convenience and reference only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. 5.3 Amendment or Waiver. This Agreement may not be modified or amended except by written instrument approved by resolution duly adopted by the Authority and approved by the City by ordinance. No course of dealing between the parties or any delay in exercising any rights hereunder shall operate as a waiver of any rights of either party. 5.4 Notices. Any notice under this Agreement must be in writing and delivered in person, delivered by recognized overnight courier service or given by mail. Any notice given by mail must be sent postage prepaid, by registered or certified mail,return receipt requested. All notices must be addressed to the parties at the following address or at such other addresses as the parties may request in writing: City: City of Kent 220 Fourth Avenue South Kent, WA 98032 Attn: Tom Brubaker PDA: Kent Downtown Public Market Development Authority 220 Fourth Avenue South Kent, WA 98032 Attn: Brent McFall, Executive Director With a copy to: Gerry Johnson Preston Gates& Ellis LLP 701 Fifth Avenue, Suite 5000 Seattle, WA 98014 r 5.5 Force Majeure. Should any fire or other casualty, act of God, earthquake, flood, epidemic, landslide, war, riot,civil commotion, general unavailability of certain materials, strike, lockout, labor dispute or other occurrence reasonably beyond the control of the City or the PDA (any of the foregoing hereinafter referred to as "Force Majeure")prevent performance of this Agreement in accordance with its provisions,performance of this Agreement by such Party shall be suspended or excused to the extent commensurate with such interfering occurrence. 5.6 Statutory Disclaimer. The Kent Downtown Public Market Development Authority is a public authority organized pursuant to Ordinance 3396 of the City of Kent and the laws of the State of Washington, RCW 35.21.730 through RCW 35.21.757. RCW 35.21.750 provides as follows: "[A]II liabilities incurred by such public corporation, commission, or authority shall be satisfied exclusively from the assets and properties of such public corporation, commission or authority and no creditor or other person shall have any right of action against the city,town, or county creating such corporation, commission, or authority on account of any debts, obligations, or liabilities of such public corporation, commission, or authority." IN WITNESS WHEREOF,the undersigned,thereunto duly authorized on behalf of each respective party, have executed this Agreement as of this_A day of , 1998. THE CITY OF KENT, A Washington munici corporation tI - B It tin W tatter,Mhyrt2, Date 9 KENT DOWNTOWN PUBLIC MARKET DEVELOPMENT AUTHORITY, A Washington public authority By Its Date 914 KW2341000011KNIINIKMINA202K